The lack of uniformity and standardization of Islamic law in Malaysia, in addition to certain arguable legal restrictions, has eventually lead to the apparent disunity among Muslims, followed by misperception among the non-Muslims, leaving both perplexed and confused.
This is partly reflected by the fact that Islamic law is only applicable to Muslims. Currently there are 14 muftis in this country, in charge of all matters concerning Islamic law but restricted in term of jurisdiction within their own respective states. Claiming to be confined to their own territories, on many occasions, we are amazed by conflicting legal rulings (fataawa, sing. fatwa) issued on matters like cigarette smoking, pageant contests, monthly income tithes, ASN, khalwat, and the like.
Some attribute the root of the problem to our Federal Constitution. But is this really the case? If that were true, are the constitutional provisions carved in stone? Let us examine this. The Constitution, via the Ninth Schedule (Legislative List), List II (State List), grants exclusive jurisdiction to state governments to administer all matters pertaining to Islamic law, but only on Muslims and within their respective state boundaries. As the supreme law of the land, no one is allowed to question this provision apparently.
The various state assemblies consolidated this authority by passing enactments leading to the creation and formation of, inter alia, the department of mufti and the syariah courts system. As alluded to, one of the glaring legal consequences of this is the non-uniformity of law, including the non-standardization and restrictions imposed on legal rulings and court decisions, worsened by the poor enforcement of both leading to a ore than complimentary image to the whole administration of the Syariah.
Examples of certain state laws are the Selangor Administration of Islamic Law Enactment, 1989; and the Administration of Islamic Law (Federal Territories) Act 1993.
It is by virtue to the same constitutional provision that a number of national bodies, namely the National Islamic Consultative Committee (Jawatankuasa Fatwa Kebangsaan – JFK), the Syariah Judiciary Department Malaysia (Jabatan Kehakiman Syariah Malaysia – JKSM) and the Islamic Development Department Malaysia (Jabatan Kemajuan Islam Malaysia – JAKIM), are unable to play their unifying roles more effectively. In saying so, we do not deny their long list of notable achievements thus far.
In the case of the JFK, its establishment was for the purposes of discussing and issuing fatwas to solve any major unsettled legal issue, and to standardize conflicting legal edicts, if any, at the national level. However, in reality, these noble objectives often times could not materialize as their resolutions carry no legal binding powers on any state. Though members of the Committee comprise all state muftis, the states enjoy absolute power in whether or not to accept or reject any conclusions reached by the Committee.
The above non-uniformity of law and its resulting confusion should be handled with wisdom. If the Constitution is perceived as being a stumbling block towards reformation and improvement, why don’t we amend it? After all, our Constitution has been amended several times to suit the changing needs and conditions of the population. All these were done, ultimately, for the smooth running of the country and for the sake of the people at large.
Legally speaking, in bringing about the much awaited standardization of Islamic law in Malaysia, the Federal Constitution may be amended by putting Islamic law on the Federal List. Then the whole business of standardizing and upgrading the Islamic legal system will become the responsibility of the Federal Government. This is an advantage in term of devising mechanisms to make the two currently running different legal systems-Islamic and civil-an operational one in our pluralistic community.
The Parliament may include new provisions in the Constitution creating new credible positions to put an end to all conflicting legal rulings and jurisdictional limitations. One of these reputable positions, with executive powers, would be the ‘Grand Mufti.’
Actually, the idea of establishing the position of Grand Mufti in Malaysia is not new. The proposal was once again put forth by IKIM’s current Director-General, Dr. Syed Ali Tawfik al-Attas, towards the end of 2006. The issue, despite its sensitive nature, proves its relevance and therefore, cannot be simply be discounted based on pseudo arguments.
A ‘Mufti’ refers to a Muslim expert competent of interpreting or expounding the Syariah and issuing legal rulings in all matters coming under the purview of the law. ‘Grand Mufti’ signifies the head of all muftis, i.e. the highest authority of Islamic law in a given Muslim nation.
In early Islam, the position of mufti was not institutionalized. As time went by, it developed into a more official state position within the different Muslim governments. Minor muftis were then scattered throughout the various dynasties, normally under the supervision of a superior official from the state capitol. During the Ottoman period, this central position was referred to as ‘shaykh al-islam.’
In modern times, as it is now in Malaysia, in the absence of a national appointment, the position of mufti has been effectively institutionalized particularly at the state level where his scope of duties is spelled out clearly in legal documents.
Coming back to the creation of new posts by amending the Constitution, other alternatives may be considered too, for instance, granting more executive powers to the JFK, JKSM and JAKIM. In fact, for the very same purpose of uniformity of law, apart from further upgrading the status of the Syariah courts, one may propose the position of a Syarie Attorney General, at par with the present Attorney General status.
All the above, I believe, are things which have been idealized for ages by and among the syarie legal fraternity or by those concerned with the status and relevance of Islam in this country.
